Paris-Strasbourg, 28 January 2015. In an international context where freedom of expression is increasingly threatened, the Perinçek v. Switzerland case offers the European Court of Human Rights a rare opportunity to settle the dilemma between freedom of expression and the fight against hate speech, especially the latter involves negationism. Given the importance of this issue, FIDH has intervened in the case by submitting written observations as a third-party intervenor stating that the negationist discourse on the Armenian genocide and the supporting hate rhetoric constitute an undeniable risk of violence and therefore can justify a restriction to freedom of expression.
“In the light of an inconsistent European case law which is the source of uncertainty that in turn jeopardises the unimpeded formation of ideas and democratic debate, the Court is called upon to formally define the conventional principles that should govern them and the criteria for interpretations that staunchly protect freedom of expression and historical discussion without allowing negationist and hateful discourse to prosper and enjoy impunity” said Karim Lahidji, President of FIDH.
A Turkish national, Mr. Perinçek, who was sentenced by the Swiss courts for racial discrimination after having publicly denied, at various conferences, the existence of any genocide perpetrated by the Ottoman Empire against the Armenian people in 1915, appealed to the European Court of Human Rights which ruled in his favour and concluded that his right to freedom of expression, which is protected by the Convention, had been violated. To dismiss the charge of rights abuse – which would be the only justification for limiting rights and freedoms protected by the European Convention on Human Rights – and reach the conclusion that freedom of expression, as guaranteed in article 10 of the Convention, had been violated, the Court determined that what had been said by the applicant was not the sort of speech that would incite hate nor violence against the Armenian people, since negation of Armenian genocide does not breed racial hatred. During the reexamination of the case by the Grand Chamber of the Court, FIDH felt that it was important to suggest certain lines of reasoning to the Court in order to ensure a better balance between protection of freedom of expression and the ban on hate speech.
“By suggesting that the denial of the Armenian genocide does not incite hate and violence towards the Armenian people, the Chamber’s decision negates the existence of the hate rhetoric employed by the Turkish media and authorities against the Armenians, which is the main cause of violence and threats against their lives”, asserted Patrick Baudouin, Honorary President of FIDH and Coordinator of the FIDH Litigation Action Group. “Many cases before the European Court of Human Rights have demonstrated the connection between such rhetoric and the proven risk of violence”, he added.
Furthermore, by linking the potential criminal dismissal of negation speech to the recognition, by an international court, of the genocide in question, as is the case for Holocaust, the Court is basing its conclusion on an erroneous criterion. This criterion not only contradicts its earlier case-law –which upholds the existence of clearly established facts and not the court’s recognition – but risks creating a dangerous difference of treatment between two categories of negation speech and introducing a “hierarchy of genocides”.
“Court recognition of a genocide predicates on the vagaries of history and can be nuanced by other forms of international recognition,” asserted Karim Lahidji, adding that, “the hateful, discriminatory intention underlying the negation approach could justify a restriction to freedom of speech".
In its third party intervention, FIDH puts forth a series of elements that the Court could use to counterbalance freedom of expression and the prohibition of incitement to hatred. The elements that must be taken into account include the content of the contentious statements, the person speaking, and the context within which the litigious words were spoken. This approach would elucidate the requirements for exceptions to freedom of expression, and thus better protect it, all the while making the provisions used to combat hate speech more effective.